(Prayer: Writ petition is filed under Article 226 of the Constitution of India, to issue a Writ of Certiorari, to call for the records, relating to the 2nd respondent's notice bearing Na.Ka. No.1580-14/2018-Mines, dated 26.10.2018, pertaining to the petitioner's Patta lands rough stone/jelly/gravel quarry measuring 1.19.0 Hec comprised in Survey No.70/2, 70/5 & 70/8 situated in Ulagani Village, Thirumangalam Taluk, Madurai District and quash the same.)
1. The petitioners had been granted lease to quarry minor minerals. According to the respondents, the petitioners have not obtained the environmental clearance as contemplated by Rule 42 of Tamil Nadu Minor Mineral Concession Rules, 1959. The District Collectors, therefore, issued the impugned memoranda directing the petitioners to pay a certain sum of money representing the price of the minerals quarried and removed during the period from 15.01.2016 to 10.01.2017.
2. The learned Senior Counsel and counsel appearing for the various writ petitioners contended that the orders impugned in the writ petitions should be set aside on the ground of violation of principles of natural justice. They further contended that the quarrying activities were carried out under lawful authority. They also seriously dispute the price attributed to the minerals.
3. Ms.Narmadha Sampath, the learned Additional Advocate General, strongly controverted the contentions advanced on behalf of the writ petitioners. She pointed out that the issues raised in the present batch of writ petitions are no longer res integra. They were comprehensively dealt with and answered in favour of the respondents in the order dated 12.06.2020 made in WP Nos.26808 of 2019 etc batch. She filed elaborate written submissions and took me through the materials enclosed in the typed set of papers and wanted me to dismiss the writ petitions.
4. The events that have led to the institution of the petitions may be briefly set out. The Hon'ble Supreme Court in Deepak Kumar vs. State of Haryana (2012) 4 SCC 692 directed as follows:
“16.We are of the considered view that it is highly necessary to have an effective framework of mining plan which will take care of all environmental issues and also evolve a long term rational and sustainable use of natural resource base and also the bioassessment protocol. Sand mining, it may be noted, may have an adverse effect on bio-diversity as loss of habitat caused by sand mining will effect various species, flora and fauna and it may also destabilize the soil structure of river banks and often leaves isolated islands. We find that, taking note of those technical, scientific and environmental matters, MoEF, Government of India, issued various recommendations in March 2010 followed by the Model Rules, 2010 framed by the Ministry of Mines which have to be given effect to, inculcating the spirit of Article 48A, Article 51A(g) read with Article 21 of the Constitution.
17. The State of Haryana and various other States have not so far implemented the above recommendations of the MoEF or the guidelines issued by the Ministry of Mines before issuing auction notices granting short term permits by way of auction of minor mineral boulders, gravel, sand etc., in the river beds and elsewhere of less than 5 hectares. We, therefore, direct to all the States, Union Territories, MoEF and the Ministry of Mines to give effect to the recommendations made by MoEF in its report of March 2010 and the model guidelines framed by the Ministry of Mines, within a period of six months from today and submit their compliance reports.
18. Central Government also should take steps to bring into force the Minor Minerals Conservation and Development Rules 2010 at the earliest. State Governments and UTs also should take immediate steps to frame necessary rules under Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957 taking into consideration the recommendations of MoEF in its Report of March 2010 and model guidelines framed by the Ministry of Mines, Govt. of India. Communicate the copy of this order to the MoEF, Secretary, Ministry of Mines, New Delhi, Ministry of Water Resources, Central Government Water Authority, the Chief Secretaries of the respective States and Union Territories, who would circulate this order to the concerned Departments.
19. We, in the meanwhile, order that leases of minor mineral including their renewal for an area of less than five hectares be granted by the States/Union Territories only after getting environmental clearance from the MoEF.”
Following the aforesaid direction, the Government of Tamil Nadu issued G.O Ms.No.79, Industries (MMC.1) dated 06.04.2015 incorporating Rules 41, 42 and 43 in Tamil Nadu Minor Mineral Concession Rules, 1959. Rule 42 reads as follows :
“42. Submission of environment clearance for the grant of quarry lease for minor minerals including Granite:- (i) The approved mining plan shall be forwarded to the applicant for obtaining environment clearance from the State Level Environment Impact Assessment Authority or the Ministry of Environment and Forests, as the case may be.
(ii) On submission of approved mining plan and environment clearance from the said authorities, the Government or the District Collector, as the case may be, shall grant the quarry lease.
(iii) Where quarrying operations for Minor Minerals including granites have been undertaken before the commencement of these rules without environment clearance, such holder of minor mineral including granite leases shall submit the environment clearance within six hundred and thirty days from the date of commencement of these rules.
(iv) When the existing holders of Minor Mineral leases including granite failed, to submit the environment clearance within the stipulated period, the District Collector or the Government, as the case may be shall cancel the lease after giving an opportunity of Personnel hearing.”
5. The Ministry of Environment, Forest and Climate Change, Government of India also issued SO.141 (E) dated 15.01.2016 making amendments in the Environment Impact Assessment Notification, 2006 pursuant to the order of the Hon'ble Supreme Court dated 27.02.2012 in Deepak Kumar case whereby prior environmental clearance became mandatory for mining of minor minerals irrespective of the area of mining lease. The said notification also constituted District Level Environment Impact Assessment Authority.
6. The Hon'ble Supreme Court in Common Cause vs. Union of India (2017) 9 SCC 499 dated 02.08.2017, directed that in cases of illegal or unlawful mining without an environmental clearance, compensation at 100% of the price of the mineral should be recovered in terms of Section 21(5) of the MMDR Act, if the extracted mineral has been disposed of.
7. In the meanwhile, Ministry of MOEFCC, Government of India issued communication dated 03.04.2017 informing the Principal Secretary to Government, Industries Department, Chennai that as per the notification SO.141 (E) dated 15.01.2016 all the mining leases operating in the country are required to obtain environmental clearance (EC). With effect from 15.01.2016, no mining lease shall operate without prior EC and they should stop their mining activity and apply for EC. The said communication dated 03.04.2017 was sustained by the National Green Tribunal (Southern Zone), Chennai in O.A No.136 of 2017 dated 30.06.2020. It was however clarified by NGT that those persons who have already filed application for environmental clearance as on 31.03.2016 cannot be treated as violators.
8. The stand of the learned Additional Advocate General is that in as much as the submissions advanced on behalf of the writ petitioners have already been considered by His Lordship Mr.Justice C.V.Karthikeyan, there is nothing further to adjudicate. She wanted me to follow the aforesaid order dated 12.06.2020 and dismiss these writ petitions.
9. His Lordship Mr.Justice C.V.Karthikeyan in the aforesaid order dated 12.06.2020 had held as follows:-
“212. The learned counsel for the petitioners then put forth a further argument in one voice that the impugned notice suffers from violation of principles of natural justice. I hold that the principles of natural justice cannot be extended for complying with the directions of the Hon'ble Supreme Court of India. Articles 141 and 142 of the Constitution of India have been extracted above. It is clear that any order passed by the Hon'ble Supreme Court is binding on every person. The date, when the Hon'ble Supreme Court directed that Environment Clearance is a pre-requisite for grant of extension of lease even for mining of lands of less than 5 hectares is the date when the petitioners were bound to get Environment Clearance. They do not require any further notice. The date, on which, Common Cause (referred supra), was pronounced and the Hon'ble Supreme Court had held that if mining activities are continued without obtaining Environment Clearance, then 100% compensation is leviable, then from that date onwards, the liability of the petitioners had arisen and they need not be put on any further notice. The law declared by the Hon'ble Supreme Court is binding on all Courts of the country. Further, issuing a show cause notice would only be an empty formality. The petitioners if at all they want to reply to any show cause notice, can only question the rationals of the Supreme Court Judgment. They cannot do so. They are bound by the judgment.
213. With respect to the reliance placed by Mr.K.Ramakrishna Reddy, on (2011) 5 Supreme Court Cases 553 (Radhy Shyam (dead) through legal heirs and others Vs. State of Uttar Pradesh and others) and on (2014) 16 Supreme Court Cases 392 (Nisha Devi Vs. State of Himachal Pradesh and others), for the proposition that the demand notices had been issued without prior show cause notice, I would state that the impugned notices in these writ petitions had been issued based on the judgment of the Hon'ble Supreme Court in Common Cause (referred supra) and as pointed out under Article 141 of the Constitution of India, any order of the Hon'ble Supreme Court is binding on all Courts. Issuing of a prior notice would only be an empty formality and therefore, I hold that the petitioners cannot complaint about non issuance of prior notice. Obligations had arisen the date the Hon'ble Supreme Court pronounced its judgment and the District Collectors were only following the mandate of the Hon'ble Supreme Court of India. I therefore hold that the impugned notices cannot be faulted on this ground.
214. Mr.K.Ramakrishna Reddy had also relied on (1990) 3 Supreme Court Cases 223 (Shri Sitaram Sugar Company Limited and another Vs. Union of India and others) and claimed that the notices were arbitrary.
215. I respectfully disagree with the said proposition put forth by Mr.K.Ramakrishna Reddy. Prior to issuance of the notification dated 15.01.2016, the Ministry of Environment, Forest and Climate Change had caused publications in newspapers, inviting objections and suggestions. The petitioners should have participated. They did not do. The notices had been issued pursuant to the directions of the Hon'ble Supreme Court of India. If the notices said to be arbitrary, then as a corollary it must be held that the judgment of the Hon'ble Supreme Court is also arbitrary. I am sure the learned counsel would not advocate such a proposition. Therefore, I am hold that the notices do not suffer from arbitrariness.
216. Mr.T.Ramesh, learned counsel relied on the judgment in AIR 1978 SC 851 (Mohinder Singh Gill and others Vs. The Chief Election Commissioner, New Delhi and others) for the proposition that public orders cannot be construed in the light of explanations subsequently given by the officers. With due respects, I hold that the impugned notices speak for themselves. There is reference to the judgment of the Hon'ble Supreme Court of India in Common Cause (referred supra). There is reference to the notification of the Ministry of Environment, Forest and Climate Change (MoEF) and the period, for which the demand is made and the amount demanded. No further details are required. Therefore, there is no occasion to expand the impugned notices in the counter affidavits.
227. The said judgment applies on all fours to the petitioners herein. The petitioners are bound to comply the demands raised in the impugned notices. As a matter of fact, the learned Additional Advocate General gave the details of the amounts calculated towards cost of mineral from Government undertakings for carrying out mining operations without Environment Clearance and it is seen that out of a total demand of Rs.1,26,06,67,922/- from 24 lessees, the respondents had collected a sum of Rs.1,55,98,04,576/- and there was a balance of Rs.8,63,346/-, alone due from Karur District. Out of the 24 lessees, 20 lessees have paid the demand in full.
233. In Appendix IX, procedure for Environmental Clearance for mining of minor minerals including Cluster had been given. The burden had been shifted to the petitioners on 15.01.2016 itself to apply for Environment Clearance in the prescribed manner. Their claim that they can wait initially for a period of 180 days and finally for a period of 630 days, only shows that their intention was never to obtain Environment Clearance but to make profit by mining the minerals without any authority, illegally and to the detriment of the environment, without any care for the ecological impact. Such mining activities have to be prevented. If done, the lessees must, as rightly called upon by the District Collectors, pay compensation. The Hon'ble Supreme Court had directed that 100% compensation is leviable and payable. That direction has to be complied with. No question asked. No assurance given.”
10. With utmost humility and the greatest respect, I must say that I am not able to agree with the approach of my brother Judge. I do feel tempted to meet the arguments of the learned Additional Advocate General point by point. But, I consciously refrain from doing so. The Hon'ble Supreme Court has held recently in S.Kasi vs. State 2020 (4) CTC 587 that a coordinate Bench cannot take a contrary view and in the event of there being any doubt, it can only refer the matter for consideration by a larger Bench and that judicial discipline ordains so.
11. It is not in doubt that in Deepak Kumar, it was specifically directed that there can be grant of fresh lease or renewal of existing lease only after getting environmental clearance from the MOEF. This order was passed on 27.02.2012. In quite a few cases before me, the quarry leases were granted prior to 27.02.2012. I am therefore prima facie of the view that at least those cases will not be directly hit by the direction issued in the final paragraph of Deepak Kumar.
12. The Hon'ble Supreme Court in Deepak Kumar directed the States to frame necessary rules under Section 15 of MMDR Act, 1957. Such rules came to be issued by the State of Tamil Nadu with effect from 06.04.2015. But Rule 42 (iii) of Tamil Nadu Minor Mineral Concession Rules, 1959 specifically states that the holders of existing licenses will have to submit the environmental clearance within 630 days from the date of the commencement of the Rules. Thus, prima facie it appears to me that till the expiry of the period of 630 days, the quarrying operations cannot be said to be without lawful authority.
13. Section 21(5) of the MMDR Act, 1957 empowers recovery of the price of the unauthorizedly quarried mineral if it had been disposed of. The Hon'ble Apex Court in Common Cause mandates that this provision should be invoked. The learned Additional Advocate General states that the respondents have merely carried out this mandate and nothing else. She would further contend that there was no need to issue show cause notice. She also pointed out that the sums demanded were arrived at based on the prices already notified by the department under Rule 7 of the Tamil Nadu Minor Mineral Concession Rules, 1959. She argued that affording a hearing to the petitioners would have been a useless formality because that could have made no difference. If that could be clearly demonstrated, it might be a good answer. But I have my own misgivings. It is true that Section 21(5) of the Act does not contemplate issuance of prior notice. But then, Courts are obliged to read the requirement of observing the principles of natural justice into statutory provisions unless they have been specifically excluded [vide (2014) 13 SCC 506, Swami Devi Dayal Hospital & Dental College vs. Union of India]. The theory of useless formality can be pressed into service only when hearing the affected party would not have made any difference. If there is no prejudice, then the formality of issuing notice can be dispensed with. In this case, the petitioners strongly dispute that the sums demanded from them represent the price of the minerals. Section 21(5) of the Act speaks of “price”. According to the petitioners, the cost of minerals notified for the purpose of Rule 7 cannot be the price for the purpose of Section 21(5) of the Act.
14. In my tentative view, the petitioners have shown that they have been prejudiced by not being afforded the opportunity of hearing. This is because they claim that they can place materials before the authority that the price which the minerals fetched is not what has been attributed by the respondents. More than anything else, Rule 42 (iv) states that if the existing holders fail to submit the environmental clearance within the stipulated period, it shall be cancelled after giving an opportunity of personal hearing. When the Rule contemplates such an opportunity for cancellation, there is no reason to exclude the application of the principles of natural justice for recovering the price of minerals under Section 21(5) of the Act. That apart, any action having civil consequences must be preceded by issuance of notice. In fact, in Common Cause judgment itself, principles of natural justice were followed in letter and spirit by the Hon'ble Supreme Court.
15. The notification dated 15.01.2016 did not direct the lease holders to desist from operating the leases if they have not obtained EC. Such a direction came to be issued only on 15.04.2017. The Common Cause judgment came in August, 2017. Rule 42 also did not bar the lessees from continuing their operations during the period of 630 days from the commencement of the rules. What amazes me is the conduct of the State Government. Deepak Kumar judgment which came on 27.02.2012 prohibited grant of quarry leases after the said date unless EC was obtained. I must record here that the Government of Tamil Nadu did issue quarry licenses even after this date to the applicants who did not have EC. In my view, such issuing of licenses constituted contempt of the order passed by the Hon'ble Supreme Court. During the period in question, for the existing lease holders, the respondents issued permits for transportation. The respondent
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s collected seigniorage fees. Having done so, the respondents have now turned the tables and characterize the actions of the petitioners as without lawful authority. 16. I feel however tempted to refer to the facts of one particular case. Mathimaran was granted quarry lease on 21.03.2007 for a period of twenty years. He applied for environmental clearance on 13.06.2016. On 29.07.2016, he obtained environmental clearance also. But, he was served with an order dated 28.11.2019 in which it was mentioned that during the period from 15.01.2016 to 10.01.2017 he had removed 5003.12 CBM of granite and that he should pay a sum of Rs.4,96,60,969/-. Mathimaran filed WP (MD)No.819 of 2020 in which he pointed out that he had already obtained environmental clearance within the time stipulated in Rule 42. He obtained interim stay on 13.01.2020. Only thereafter, a revised memorandum dated 24.01.2020 was issued and in the revised memorandum, the quantity became reduced to 3627.241 CBM and compensation became Rs.3,60,03,994/-. The period became “15.01.2016 to 29.07.2016”. Mathimaran case is a complete answer to the claim of the learned Additional Advocate General that the authority can themselves determine the liability without hearing the aggrieved party. 17. During times of disaster, en masse burials or cremations take place. But, the undertakers have to be doubly sure that only dead bodies are being disposed. Just imagine a living person lying amidst the heap. Jeremy Bentham can speak of the greatest good of the greatest number. That is the philosophy of utilitarianism. But John Rawls would speak of justice to every individual. This can be ensured only if every case is considered with reference to its own unique facts. And that is possible only if the affected person is put on notice. That is why, I entertain a strong doubt as regards the exclusion of the principles of natural justice in these cases. 18. My doubts can be dispelled only by a larger Bench. I therefore, direct the Registry to place the papers before My Lord The Hon'ble Chief Justice to consider constituting a larger Bench.